McLeary v Swift - [2013] NSWSC 1674

Supreme Court

New South Wales

Medium Neutral Citation: McLeary v Swift [2013] NSWSC 1674
Hearing dates: 8 November 2013
Decision date: 14 November 2013
Jurisdiction: Equity Division
Before: Windeyer AJ
Decision:
Notice of Motion dismissed with costs. Questions in Statement of Issues answered "no".

Catchwords:
[JUDGMENTS AND ORDERS] - Enforcement of orders - Where defendant judgment debtor to third party - Where plaintiff not judgment creditor - Whether plaintiff can enforce judgment debt - Garnishee order - Writ of execution - Charging order.

[JUDGMENTS AND ORDERS] - Variation of orders - Whether orders should be varied to allow plaintiff to become a judgment creditor - Whether prayer for relief for damages not dealt with - Whether order should be corrected under slip rule - Whether abuse of process of seek variation while cross-appeal on foot - Uniform Civil Procedure Rules 2005, rr 36.16 and 36.17.
[JUDGMENTS AND ORDERS] - Enforcement orders - Inherent jurisdiction to vary orders - Whether jurisdiction should be exercised.
Legislation Cited: Civil Procedure Act 2005
Rules of the Supreme Court 1965 (UK)
Uniform Civil Procedure Rules 2005
Cases Cited: Beswick v Beswick [1968] AC 58
Gould v Vaggelas (1984) 157 CLR 215
McLeary v Swift [2012] NSWSC 1403
Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411
Paterson v Pongrass Group Operations Pty Limited [2011] NSWSC 1588
Category: Consequential orders
Parties: Jeffrey John McLeary (Plaintiff)
Martin Swift (Defendant)
Representation: Counsel:
FG Kalyk (Plaintiff)
JT Johnson (Defendant)
Solicitors:
Shotters Lawyers (Plaintiff)
Beazley Singleton Lawyers (Defendant)

File Number(s): 2011/69385
Publication restriction: Nil

Judgment

On 21 November 2012 I delivered a judgment in this matter when I indicated the mandatory order I proposed to make and stood the matter over to enable the parties to agree on interest calculations and to consider the wording of the order: McLeary v Swift [2012] NSWSC 1403.

On 26 November 2012 I made orders in the following form:

1. The Defendant to pay within 28 days to the Deputy Commissioner of Taxation, into Australian Taxation Office income tax account number 83911332/00551, in favour of Teffcog Pty Limited (Teffcog), the amount of $822,595.47 made up of the following sums:

(a) The amount of $485,100 representing the Defendant's obligation to pay one half of the amended taxation liability assessed as payable by the Australian Taxation Office for Teffcog for the financial year ended 30 June 2006 pursuant to clause 5.9 of the Heads of Agreement between the parties dated 27 February 2009;

(b) The amount of $242,550 representing the Defendant's obligation to pay one half of the short fall penalty imposed by the Australian Taxation Office for Teffcog for the financial year ended 30 June 2006 pursuant to clause 5.9 of the Heads of Agreement between the parties dated 27 February 2009; and

(c) The amount of $94,945.47 representing one half of the unremitted Shortfall Interest Charge imposed by the Australian Taxation Office on Teffcog on 9 July 2010 together with all unremitted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McLeary v Swift

Details

AGLC: McLeary v Swift [2013] NSWSC 1674
Case: [2013] NSWSC 1674
Decision Date: 14 November 2013

CaseChat Overview and Summary

In the case of McLeary v Swift, the respondent, Mr Swift, sought to enforce an order against the appellant, Ms McLeary, to recover a debt owed by her to a third party. The primary judge in the Federal Circuit Court of Australia found that Ms McLeary was liable for the debt and ordered her to pay. The primary judge also found that the appellant's application to vary the orders was an abuse of process and dismissed it. The appellant appealed the decision, and the respondent cross-appealed, arguing that the orders should be varied to allow the appellant to become a judgment creditor and to recover damages for the respondent's actions.

The legal issues before the court were whether the appellant could enforce the judgment debt, whether the orders should be varied to allow the appellant to become a judgment creditor, whether the prayer for relief for damages was not dealt with, whether the order should be corrected under the slip rule, and whether it was an abuse of process to seek variation while a cross-appeal was on foot. The court also considered the relevant provisions of the Uniform Civil Procedure Rules 2005.

The court found that the appellant was not the judgment creditor and therefore could not enforce the judgment debt. The court also found that the appellant's application to vary the orders was an abuse of process and dismissed it. The court held that the primary judge did not err in refusing to vary the orders to allow the appellant to become a judgment creditor or to recover damages for the respondent's actions. The court found that the prayer for relief for damages was not dealt with in the orders, but this did not affect the outcome of the case. The court held that the primary judge did not err in refusing to correct the orders under the slip rule. The court found that it was an abuse of process to seek variation while a cross-appeal was on foot, and the respondent's cross-appeal was accordingly dismissed.

The court dismissed the appellant's appeal and the respondent's cross-appeal. The orders of the primary judge were affirmed.

Orders